Tuesday, December 31, 2013

Employment Authorization for E-2 Spouses does not require EAD

In an unpublished decision, the Board of Immigration Appeals reversed the immigration judge's denial of an adjustment of status application for unauthorized employment under INA 245(c).  The Board found that the E-2 dependent spouse did not engage in unauthorized employment.  

The Board found that INA §214(e)(6) of the Act, 8 U.S. C. § 1184(e)(6), provides that in the case of an E-2 dependent spouse who accompanies or follows to join the E-2 principal alien the "Attorney General shall authorize the alien spouse to engage in employment and provide the spouse with an "employment authorized" endorsement or other appropriate work permit (Emphasis added). 

The Board ruled that the DHS employment authorization regulation, 8 C.F.R. § 274a.12(c)(2), entitled "Aliens who must apply for employment authorization," provides that an alien spouse or unmarried dependent son or daughter of a nonimmigrant treaty trader (E-1) must apply for work authorization. However, the regulation does not specifically state that the spouse of a treaty investor (E-2) must do the same.   Do Kyung Lee, A089 047 352 (BIA Nov. 5, 2013).

Wednesday, December 18, 2013

Employers Should Make H-1B Plans Now; The New Filing Season Starts April 1, 2014

The Miller Law Offices provide their ten best planning tips for employers and employees, in advance of the April 1, 2014 USCIS H-1B filing season.

Employers use the H-1B visa category to employ nonimmigrant foreign workers who possess the equivalent of a U.S. bachelor’s degree for professional jobs each year. The first date that H-1B petitions will be accepted by the USCIS for employer filing for October 1, 2014 employment is April 1, 2014.

Last year, U.S. Citizenship and Immigration Services (USCIS) reached the statutory H-1B cap of 65,000 for fiscal year (FY) 2014 within the first week of the filing period, which ended on April 5, 2013. USCIS also received more than 20,000 H-1B petitions filed on behalf of persons exempt from the cap under the advanced degree exemption.  

Because USCIS received approximately 124,000 H-1B petitions during the filing period, the agency used a computer-generated random selection process or “lottery” to select petitions to meet the 65,000 cap for the general category and the 20,000 cap under the advanced degree exemption limit.
It is likely that the low cap numbers will be not be sufficient for this year's volume demand and that the cap will close quickly as it did last year.

To maximize your chances for H-1B employment authorization, your company should consider the following ten tips:

1. Use an immigration lawyer with experience in successful H-1B filing.

2. U.S. advanced degree recipients’ petitions are placed in a more favorable pool of an additional 20,000 cap exempt numbers. There is also competition for those additional numbers as that cap was also quickly reached last year.

3. Professionals from Chile or Singapore are given extra numbers, which are unlikely to be used up. Those H-1B1 petitions need special filing treatment and allow specialty professional jobs for qualified persons who have the threshold bachelors’ degrees.

4. Canadian and Mexican professionals also have specialty professional programs, allowing TN status without the need to compete for H-1B numbers. TNs are now eligible for a three year admission, providing flexibility for employers’ long-term employment strategy of the North American foreign professionals.

5. Australian professionals are eligible for E-3 professional visa status, a program which is not limited by the H-1B cap.

6. The O-1 category for aliens of extraordinary ability is a non-cap alternative for persons who have reached the highest level of accomplishment in their fields.

7. DHS now allows a 17 month extension of optional practical training from 12 to 29 months for F-1 students who major in specified science, technology, engineering and mathematics (STEM) SEVIS authorized programs. The accepted employment must be with employers enrolled and considered by the CIS to be in good standing in the E-Verify program. The successful STEM OPT extension, with the approval of the school’s DSO and the proper and timely filing of the extension, may represent a bridge to an opportunity for the unsuccessful applicant’s next opportunity for successful H-1B petition.

8. A qualified institution of higher education or research non-profit organization is exempt from the H-1B cap and can sponsor a H-1B visa at any time of the year.  If your employer an institution of higher education; related or affiliated to a higher education institution nonprofit entity, or a nonprofit research organization or a governmental research organization, you may expect favorable exempt treatment for your H-1B petitions.

9. Duration of status and any post-completion OPT work authorization is automatically extended for an F-1 student who is the beneficiary of a timely-filed H-1B petition requesting change of status and an employment start date of October 1, 2014.

10. Some foreign-based and educated persons will qualify for up to 18 months employment in qualified training programs through J-1 sponsorship.

For further information about the Miller Law Offices immigration benefit legal services, please contact Charles Miller or Terri Miller at (818) 508-9005 or direct your E-mail to Charles Miller

Friday, November 29, 2013

E-Verify Social Security Number Fraud Lock

A new employee whose employer uses the E-Verify system for employment authorization verification  may find that his or her Social Security Number has been locked.

Similar to method that credit card companies use to lock a card that appears to have been stolen, USCIS may now lock SSNs in E-Verify that appear to have been used fraudulently. USCIS will use a combination of algorithms, detection reports and analysis to identify patterns of fraudulent SSN use and then lock the number in E-Verify. The agency says that this step will help to deter and prevent fraudulent use of SSNs in the E-Verify system.

If an employee attempts to use a locked SSN, E-Verify will generate a “Tentative Nonconfirmation” (TNC). The employee receiving the TNC will have the opportunity to contest the finding at a local Social Security Administration (SSA) field office. If an SSA field officer confirms the employee’s identity correctly matches the SSN, the TNC will be converted to “Employment Authorized” status in E-Verify.

Monday, October 28, 2013

STEM OPT 17 month Extension Before Graduation For Thesis Writers

The USCIS released a policy memorandum which clarifies the situation where the applicant requests a 17 month STEM OPT extension prior to graduation where there is a thesis requirement to  be fulfilled. The October 6, 2013 memorandum allows F-1 students who are engaging in post- completion OPT to be eligible for a 17-month STEM extension even if they have not yet completed the thesis requirement or equivalent for their STEM degree.

Thursday, October 17, 2013

E-Verify Returns from the Shutdown

E-Verify is now back online.  The USCIS has provided guidance for the creation of an E-Verify case for those employees hired during the shutdown for whom the E-Verify system was unavailable:
"You must create an E-Verify case for each employee hired during or otherwise affected by the shutdown by November 5, 2013. If you are prompted to provide a reason why the case is late (i.e., does not conform to the three-day rule), select ‘Other’ from the drop-down list of reasons and enter ‘federal government shutdown’ in the field."

Other procedures such as Tentative Nonconfirmations, Final Nonconfirmations, with regards to both the employer and employee responsibilities,  were affected and discussed by USCIS in this Adobe document.

Wednesday, September 4, 2013

New E-Verify Notices for the Tentative Nonconfirmation Process

E-Verify replaced the Tentative Nonconfirmation (TNC) Notice and Referral Letter with the Further Action Notice and the Referral Date Confirmation.

An employee may receive a TNC if there is a record mismatch that needs to be resolved with either the U.S. Department of Homeland Security (DHS) or the Social Security Administration (SSA) before E-Verify confirms the employee as work authorized.

The new Further Action Notice notifies employees that a TNC has occurred and gives them the option to contest it with DHS or SSA and explains the steps the employee must take to resolve the record mismatch. The notice must be signed by both the employer and the employee and retained with the Form I-9

After the employee contests the TNC and the employer refers the case to DHS or SSA, the new one-page Referral Date Confirmation will be generated for the employer print to give to their employee. The Referral Date Confirmation will include the deadline for the employee to complete the agency contact action.The new notice enhancements do not change the system's contact deadlines for employees who contest the TNC notice.Users will complete a short tutorial and knowledge check when accessing E-Verify for the first time after the enhancements are released. Visit the E-Verify website to see samples of the Further Action Notice and the Referral Date Confirmation in 17 languages.

USCIS has also enhanced the employee email notification during the TNC process.  Since  July 2013, the employee email address has been an E-Verify field. During the TNC process the employee's email address may receive 4 different emails: TNC issued; SSA or DHS referral;  A reminder that 4 days are left to appear at the applicable office; and  advice to a US citizen that correction of an SSA record may be necessary.  

Friday, August 2, 2013

DOJ I-9 Anti-Discrimination Video

by Arnulfo Sanchez

The Department of Justice (DOJ) provides employers with a YouTube video on how to avoid discrimination in the I-9 and E-Verify eligibility verification processes. The video also contains information for employees on their legal rights when dealing with document abuse discrimination.

The video discusses impermissible patterns that violate fair-employment provisions. For example, an employer cannot request the employee to present a particular document that is required to establish her identity and/or employment authorization. Doing so, would violate federal law. One must only ask that the document(s) that the employee chooses to present meet the necessary requirements for identity/authorized employment verification.

The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) produced the video. OSC provides hotlines and an email address where employers and employees can ask questions regarding the prevention of discrimination. The workers’ hotline is 1-800-255-7688, (TTY Hotline for the hearing impaired is1-202-616-5525). The employers’ hotline is 1-800-255-8155, (TTY Hotline for the hearing impaired is 1-202-616-5525). The public can also communicate via email at ; or visit their website, which is [1] .

[1] D.O.J.  “Justice Department Releases Educational Video about Discrimination in
Employment Eligibility Verification” (Press Release, July 11,  2013), found online at

Monday, July 1, 2013

E-Verify to Send Employees with I-9 E-mail addresses TNC information

The 2013 Form I-9 contains an optional field for employees to provide their email addresses.  Once voluntarily provided by the employee in section 1 of the I-9 form, USCIS has directed that employers must supply that email address when inputting  E-Verify information. If the email address information is left blank,  employers should not provide that information.

On July 1, 2013, USCIS has now informed the public what that email information will be used for.  It will allow the USCIS notify an employee directly with regard to a  Tentative Nonconfirmation (TNC). TNCs occur when the information an employer provides to E-Verify about an employee does not match data found in either U.S. Department of Homeland Security or Social Security Administration records. To date, employees learned of TNCs only through their employers. Now, if an employee voluntarily provides his or her email address on the new Form I-9, the employee will be notified by USCIS directly through that email address.

E-Verify member employers are cautioned that this email TNC service does not satisfy the employer's duty of directly providing the employee notice of the TNC, as required by the E-Verify Memorandum of Understanding. The employer must "promptly" notify the employee of the DHS or SSA Tentative Nonconfirmation (TNC) case result in person, by fax, e-mail, or overnight or next-day delivery service.